IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARK A. BROOKS,

Case No. 2:12-cv-225

Plaintiff, Judge Gregory L. Frost

Magistrate Judge Mark R. Abel

v. 

OHIO STATE CHIROPRACTIC BOARD, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Plaintiff Mark A. Brooks’ Motion for Emergency

Temporary Restraining Order (“TRO”) and/or Preliminary Injunction (ECF No. 8), Defendants’

Memorandum in Opposition (ECF No. 10), and Plaintiff’s Reply to Defendants’ Memorandum

in Opposition (ECF No. 15). As set forth below, Plaintiff’s Motion is DENIED.

I. Background

The Court culls the factual background set forth below from the Plaintiff’s First

Amended Complaint (ECF No. 3) and the materials submitted to the Court in the TRO

proceedings. The factual recitation provided here serves the limited purpose of addressing the

immediate Motion for TRO and/or Preliminary Injunction before the Court. Any finding of fact

or conclusion of law made by a district court in addressing a request for injunctive relief is not

binding at a trial on the merits. See United States v. Edward Rose & Sons, 384 F.3d 258, 261

(6th Cir. 2004) (citing University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68

L. Ed. 2d 175 (1981)).

Plaintiff is an Enforcement Investigator employed by Defendant Ohio State Chiropractic

Board (“OSCB”). (First Am. Compl., ECF No. 3, ¶ 12.) Defendant Kelly Caudill, the OSCB

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Executive Director, is Plaintiff’s direct supervisor. (Id. at ¶¶ 4, 12; Caudill Aff., ECF No. 10-1, ¶

2.) In his capacity as Investigator, Plaintiff investigated chiropractic complaints and violations

of federal, state, and local laws governing chiropractic practice in the state of Ohio. (Caudill

Aff., ¶ 3.) To facilitate the performance of investigatory duties, OSCB issued Plaintiff various

items for his use, including an OSCB email account, a Global Positioning System, a cell phone,

photo identification, an Ohio Bureau of Motor Vehicles undercover driver’s license, a 2010 Ford

Focus automobile, and a credit card. (Id. at ¶ 5.) 

On February 29, 2012, Caudill implemented new work rules and policies that affected

Plaintiff’s job responsibilities. (First Am. Compl, ¶ 15.) According to Plaintiff, the new policies

“drastically changed” his responsibilities. (Id.) The day after Caudill implemented the changes,

Plaintiff objected to the new rules in an email to Caudill, claiming that they violated the “labor

contract” between the state of Ohio and the Ohio Civil Services Employees Association,

ASFSCME, Local 11, AFL-CIO (the “Union”). (Id. at ¶ 16 and Ex. D.) Just over a week later,

on March 9, 2012, Plaintiff emailed OSCB two grievance forms: one of the forms asserted that

the newly added job duties violated Article 19 of the Union contract while the other form

claimed that Caudill implemented new work rules in violation of Article 44, Section 44.04 of the

Union contract. (Id. at ¶ 18 and Ex. E.) 

On the morning of March 12, 2012, in an e-mail to Plaintiff, Caudill acknowledged

receipt of Plaintiff’s grievance forms submitted three days earlier. (Id.) Twenty-two minutes

after receiving Caudill’s email acknowledgment, Plaintiff submitted to Caudill his resignation, to

be effective on August 3, 2012. (Id. at ¶ 19 and Ex. J.) Approximately two hours later, Caudill

summoned Plaintiff to report immediately to the Office of Collective Bargaining “for an

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administrative investigation.” (Id. at ¶ 20.) 

Plaintiff reported as instructed and, along with a Union steward, met with Defendants

Kate Nicholson and James Knight from the Ohio Department of Administrative Services. (Id. at

¶¶ 6, 8, 21.) At the conclusion of the interview, Plaintiff was placed on paid administrative leave

and ordered to “surrender all State-issued property,” including his employee badge and OSCBissued automobile. (Id. at ¶ 22.) State troopers escorted Plaintiff to his OSCB-issued car, from

which Plaintiff’s personal belongings were seized. (Id. at ¶¶ 24, 26-27.) 

Plaintiff filed this action on March 14, 2012. (Compl., ECF No. 2.) In his First

Amended Complaint, Plaintiff contends that the search and seizure of the OSCB-issued vehicle

violated his constitutional rights and that his placement on administrative leave was in retaliation

for his filing grievances against Caudill. (First Am. Compl., ECF No. 3, ¶¶ 30-34, 39-53.) 

Plaintiff also alleges “reputational injury without due process” under 42 U.S.C. § 1983 and a

state-law claim for negligent retention. (Id. at ¶¶ 35-38, 54-57.) The Motion for TRO and/or

Preliminary Injunction now before the Court (ECF No. 8) arises out of events that took place

after the filing of this action. 

On April 2, 2012, Defendants Nicholson and Knight conducted a “second interview”

with Plaintiff, an interview Plaintiff says was ordered “under threat of removal from office.” 

(Mot. for TRO, ECF No. 8, at 3.) The “second interview” was called after Caudill found that a

substantial number of emails had been deleted from Plaintiff’s OSCB email account. (Caudill

Aff., ECF No. 10-1, ¶¶ 8-10.) For his part, Plaintiff disputes that he “deleted” the e-mails;

rather, Plaintiff contends that he began “preserving electronically stored information, including

over 3,000 email messages from his Ohio State Chiropractic Board email account.” (ECF No. 8,

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at 3-4.) Plaintiff admitted to Nicholson that he moved emails from his OSCB account to an

external hard drive. (Nicholson Aff., ECF No. 10-3, ¶ 5.) At the “second interview,” Nicholson

ordered Plaintiff to produce the original emails he “preserved” and further ordered him not to

maintain any copy of the materials. (Id. at ¶ 6; Mot. for TRO, ECF No. 8, at 4.) Nicholson

further advised Plaintiff that his failure to comply with her order would result in the termination

of his employment. (ECF No. 8, at 4.) 

The following day, Plaintiff filed his Motion for TRO and/or Preliminary Injunction. 

Plaintiff says he complied with the order by Nicholson “to prevent his removal from office.” 

(ECF No. 8, at 3.)1

 He requests injunctive relief, however, to restrain Defendants from again

compelling him to produce “original forms of documents, electronically stored information, and

tangible things, items that would otherwise be discoverable pursuant to Rule 26, under threat of

removal from office.” (Id. at 4.) Plaintiff does not, however, indicate that he has anything more

in his possession other than what he turned over to Defendants on April 3, 2012. 

Following the filing of Plaintiff’s Motion, this Court convened a S. D. Loc. R. 65.1

telephone conference, in which Plaintiff pro se and counsel for Defendants participated. (See

ECF No. 9.) The parties agreed that the Plaintiff’s Motion for TRO and/or Preliminary

Injunction would be submitted on the briefs pursuant to the briefing schedule set by the Court. 

(Id.) With the matter now fully briefed, the Plaintiff’s Motion for TRO and/or Preliminary

Injunction is ripe for this Court’s decision. 

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In her affidavit submitted with Defendants’ Opposition to Plaintiff’s Motion for TRO

and/or Preliminary Injunction, Caudill confirms that she received from Plaintiff on April 5, 2012,

a compact disc that purportedly contains the emails removed from his OSCB email account. 

(Caudill Aff., ECF No. 10-1, ¶ 11.) Caudill notes, however, that the disc is “encrypted and

password protected” and claims she has been unable to access the disc’s contents. (Id.) 

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II. Discussion

When ruling on a motion for TRO or preliminary injunction, a district court must

consider and balance four familiar factors — (1) whether the movant has a strong likelihood of

success on the merits; (2) whether the movant would suffer irreparable injury without the

injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4)

whether the public interest would be served by issuance of the injunction. See e.g. Overstreet v.

Lexington-Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002). These factors are not

hard-and-fast prerequisites that must be met; rather, the Court balances these factors against each

other Id. Also, a court must be mindful that a preliminary injunction is an extraordinary

remedy to be granted “only if the movant carries his or her burden of proving that the

circumstances clearly demand it.” Id. 

A. Likelihood of Success on the Merits

In opposing Plaintiff’s motion for injunctive relief, Defendants argue as if the focus of

the “likelihood of success” factor is on Plaintiff’s ability to show that any of the documents or

other electronically stored information in question is somehow related to the merits of this action

(and thereby discoverable). But this mode of analysis confuses the issue. While the Plaintiff’s

requested relief concerns, at its core, a discovery issue, the operative inquiry under the

“likelihood of success” factor is whether the movant demonstrates a likelihood of success on the

merits of the action. 

Even as properly framed, this factor does not favor Plaintiff at this juncture. Generally

speaking, the merits of this action center on Plaintiff’s allegations that he was subject to an

illegal search and seizure and that the Defendants’ actions were retaliatory for Plaintiff having

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filed Union grievances against Defendant Caudill. (First Am. Compl., ECF No. 3, at ¶¶ 16-18,

22-29, 49-53.) For their part, Defendants state that Plaintiff was placed on administrative leave

pending an unspecified “administrative investigation” of Plaintiff. (Caudill Aff., ECF No. 10-1,

at ¶¶ 6-7.) 

On the briefing on Plaintiff’s Motion for TRO and/or Preliminary Injunction, the parties

have not placed before the Court evidence related to the merits of Plaintiff’s action. This is not

surprising, as the injunctive relief sought by Plaintiff relates to discovery matters and does not

seek interim relief that requires any proof related to the merits of his causes of action. Surprising

or not, however, all the Court has before it on the merits of the action are unsworn allegations of

wrongdoing by Defendants with little in response from Defendants to address the allegations. 

On the state of the record before it, the Court cannot say that Plaintiff has demonstrated any

likelihood of success on the merits of his substantive claims. 

B. Irreparable Harm

Even if this Court were to treat the allegations in Plaintiff’s pro se First Amended

Complaint as some demonstration of his ability to succeed on the merits, the irreparable harm

factor poses an insurmountable barrier to Plaintiff’s request for injunctive relief. Plaintiff has

not demonstrated the sort of harm for which a TRO or preliminary injunction is appropriate. 

The harm for which Plaintiff seeks injunctive relief relates to his fear that evidence will

be altered, destroyed, or lost. That is, he says that if he is forced to turn over original materials

(e.g., electronically stored information or other documents), at peril of termination of

employment, there may be harm done to his case because “Plaintiff will never know if the emails

delivered to defendants will be the same emails, in their entirety and unaltered state, [as the

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emails that will be] delivered to plaintiff during discovery” during this litigation. (Mot. for TRO,

ECF No. 8, at 3.) This sort of harm, however, is ill-suited for issuance of a TRO or preliminary

injunction, as it is not truly “irreparable.” 

Plaintiff must demonstrate that injunctive relief is the only way of protecting him from

immediate irreparable harm of which he complains; injunctive relief is not available for harm

that will occur in the indefinite future. See Campbell Soup Co v. ConAgra, Inc., 977 F.2d 86, 91

(3d Cir. 1992). Based on the record before the Court, Plaintiff cannot make this showing. 

Plaintiff admits that he has already turned over original e-mails to the OSCB in response to the

order from Defendant Nicholson. Plaintiff does not allege that there are additional original

emails or documents that he has been ordered to return upon peril of employment termination. 

Rather, he seeks injunctive relief “with respect to future activity,” to assure that the OSCB

cannot again make him return original documents “under threat of removal from office.” (Pltf.

Reply, ECF No. 15, at 2.) The extraordinary relief of a TRO or preliminary injunction is not

designed to address this sort of indefinite “future” harm. 

Moreover, the harm of which Plaintiff complains is not “irreparable” because there are

mechanisms to address his discovery-related concerns in the normal course of litigation. 

Plaintiff has, in fact, already utilized one of these methods, as his Motion for TRO indicates that

he has already sent a “demand for preservation” letter to OSCB (through its counsel), placing

Defendants on notice that they should preserve all electronically stored information that may be

discoverable under Fed. R. Civ. P. 26. (Pltf. Mot. for TRO, ECF No. 8, Ex. A-2.) In addition,

Plaintiff may be able to obtain properly tailored discovery orders designed to ensure preservation

of discoverable materials. Though Plaintiff fears spoliation of the “original” evidence, the

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Federal Rules of Civil Procedure have sufficient mechanisms in place to allay that fear:

Defendants engage in such chicanery at peril of discovery sanctions under Fed. R. Civ. P. 37. 

See LaMonte Tumbling v. Merced Irrigation Dist., No. CV F 08-1801, 2009 U.S. Dist. LEXIS

80853 (E.D. Cal. Aug. 21, 2009) (denying a request for a “discovery” TRO when the alleged

harm was compensable by monetary damages or discovery sanctions under Fed. R. Civ. P. 37);

Teneco Auto. Operating Co., Inc. v. Kingdom Auto Parts, No. 08-cv-10467, 2009 U.S. Dist.

LEXIS 11731 (E.D. Mich. Feb. 17, 2009) (enjoining discovery by way of a TRO is improper

given the availability of a protective order under Fed. R. Civ. P. 26). 

For these reasons, the Court finds that Plaintiff has not shown irreparable harm that is

properly redressable through a TRO or preliminary injunction. Plaintiff cannot use the

extraordinary relief of a TRO or preliminary injunction to obtain what amounts to a discovery

order obtainable through the normal discovery process under the civil rules. 

C. Harm to Others and Public Interest

In light of the failure of Plaintiff to show a likelihood of success on the merits or

irreparable harm, there is no need for the Court to examine the remaining factors that govern

issuance of a TRO or preliminary injunction. Though the Court has considerable doubt as to

whether even these last two factors would favor Plaintiff, it is not required to balance them under

these circumstances. A district court is not required to make specific findings concerning each

of the four factors used in determining a motion for preliminary injunction if fewer factors are

dispositive of the issue. Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003); see also

Moore v. Warden, Pickaway Cnty. Corr. Inst., No. 2:11-cv-132, 2011 U.S. Dist. LEXIS 106539,

at *14 (S.D. Ohio Sept. 20, 2011) (declining to address final two injunctive relief factors when

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plaintiff had failed to demonstrate likelihood of success on the merits or irreparable harm), aff’d

and adopted, 2011 U.S. Dist. LEXIS 134157 (S.D. Ohio Nov. 21, 2011).2 

III. Conclusion

For the foregoing reasons, Plaintiff’s Motion for Emergency Temporary Restraining

Order and/or Preliminary Injunction (ECF No. 8) is DENIED. 

 IT IS SO ORDERED.

/s/ Gregory L. Frost 

GREGORY L. FROST

UNITED STATES DISTRICT JUDGE

2

The Court has some concern about Plaintiff’s apparent act of transferring emails from

his OSCB email account to an external device and then taking that electronically stored

information with him. Plaintiff characterizes his actions as “preserving electronically stored

information.” (Mot. for TRO, ECF No. 8, at 2.) Regardless of how Plaintiff characterizes them,

his actions strike the Court as self-help discovery of a brazen sort that could be viewed as a

misappropriation of state property. Defendants do not, however, raise an issue of Plaintiff’s

unclean hands as a basis upon which to deny injunctive relief. See Performance Unlimited, Inc.,

v. Questar Publishers, Inc., 52 F.3d 1373, 1383 (6th Cir. 1995) (“The concept of unclean hands

may be employed by a court to deny injunctive relief where the party applying for such relief is

guilty of conduct invovling fraud, deceit, unconscionability, or bad faith related to the matter at

issue to the detriment of the other party.”). 

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